Green v. Payne

1

QUENTIN KYLE GREEN, PETITIONER v. DEXTER PAYNE RESPONDENT

No. 4:20CV001449-LPR-JTK

United States District Court, E.D. Arkansas, Central Division

June 22, 2022

PROPOSED FINDINGS AND RECOMMENDATIONS

JEROME T. KEARNEY, UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS

The following recommended disposition has been sent to United States District Judge Lee P. Rudofsky. Any party may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

DISPOSITION

I. Introduction

On May 18, 2016, a criminal information filed in the Circuit Court of Miller County, Arkansas, charged Quention Kyle Green (“Petitioner”) with one count of rape and one count of sexual assault in the second degree. State v Green, 46CR16-388; (Doc. No. 7-7 at 6). Ultimately, a jury convicted Petitioner of the charges. (Doc. No. 7-2 at 33, 34). Attorney Joe Tyler (“Tyler”) represented Plaintiff during the criminal proceedings.

Petitioner appealed. (Doc. No. 7-3). His convictions were upheld by the Arkansas Court of Appeals in a January 24, 2018 opinion. Green v. State, 2018 Ark.App. 38 (2018); (Doc. No 7-5). Petitioner then unsuccessfully sought relief under Rule 37 of the Arkansas Rules of Criminal Procedure. (Doc. No. 7-7 at 8, 101). On February 19, 2020, the Arkansas Court of Appeals affirmed the denial of Rule 37 relief. Green v. State, 2020 Ark.App. 130, 1-5 (2020). The Arkansas Supreme Court denied Petitioner's petition for review on April 23, 2020. (Doc. No. 714).

Petitioner now seeks relief pursuant to 28 U.S.C. §2254. (Doc. No. 1). He argues that Tyler violated the Arkansas Rules of Professional Conduct along with Petitioner's rights under the Sixth and Fourteenth Amendments. Petitioner's claims are based largely on the fact that Tyler's law partner Craig Barrett (“Barrett”) was romantically involved with the prosecuting attorney who prosecuted the criminal case against Petitioner.

Petitioner raises the following five claims in his § 2254 petition: (1) the circuit court erred in refusing to hold that defense counsel had a conflict of interest not remedied by a valid waiver; (2) counsel was ineffective by his failure to object to inadmissible testimony from Melanie Halbrook of the Child Advocacy Center; (3) counsel was ineffective by his failure to object to testimony of witnesses quoting the accuser and not seeking an instruction that their testimony was not being admitted for the truth of the matter asserted; (4) counsel was ineffective for failure to object to improper impeachment of a defense witness; and (5) counsel was ineffective by failure to present or seek to present testimony concerning the accuser's source or inspiration to make the original claim of abuse.

II. Background

Relevant portions of the underlying proceedings are provided below.

A. The Charges Against Petitioner and the Ensuing Jury Trial

Petitioner was accused of the rape and second-degree sexual assault of his 10-year-old stepdaughter, K.B. K.B. told her mother of the abuse; her mother in turn confronted Petitioner. (Doc. No. 7 at 2). When K.B.'s mother later talked to K.B. to verify the abuse, the mother explained that Petitioner would go to jail and K.B.'s younger sister would be without her father. (Id.). K.B. then recanted her allegation; the recantation was videoed by attorney Michael Peek “Peek.” (Id.).

Several years later, K.B. reiterated the allegations of abuse. (Id.). K.B. explained in an interview with Melanie Halbrook (“Halbrook”), a forensic interviewer with the Child Advocacy Center (“CAC”), that she recanted her allegations because her mother did not believe her. (Id.). K.B. also reported that Petitioner had continued the abuse. (Id.). K.B.'s renewed allegations led to the rape and second degree sexual assault charges.

The Arkansas Court of Appeals accurately described the evidence adduced at Petitioner's trial as follows:

Lyndi Green, appellant's former wife, testified that she has four children. K.B. is one of her middle children. Ms Green testified that when K.B. was ten years old, K.B. told her that appellant, K.B.'s stepfather at the time, had touched her inappropriately under her pajamas and under her panties. Appellant denied the allegations after Ms. Green confronted him about the incident. Ms. Green testified that on that same night that she confronted appellant, appellant indicated that he thought about killing himself. After that incident, Ms. Green had K.B. stay with her grandparents and took K.B. to see a counselor. A few days later and after further conversations with Ms. Green about the ramifications of the allegations, K.B. recanted her story, apologized to appellant, and returned home. Additionally, the family went to an attorney, Michael Peek, and a video was taken of K.B. explaining that she had recanted her story. A few years later, K.B. told Ms. Green that she had lied when she had recanted her story. Additionally, K.B. told her biological father about the incident, and it was reported to law enforcement.

Officer Patsy DeHart testified that she was the investigator assigned to the case against appellant in 2016. Officer DeHart testified that law enforcement had received a call on the Arkansas State Police hotline with the allegations. Arkansas State Police Crimes Against Children Division took the initial report, and it was screened by the Arkansas Department of Human Services (DHS). Officer DeHart contacted the Children's Advocacy Center (CAC) and arranged for K.B. to be interviewed.

Melanie Halbrook, a forensic interviewer at the CAC in Benton County, testified that she had interviewed K.B. K.B. was fifteen years old at the time of the interview. Ms. Halbrook testified that during the interview, K.B. disclosed that appellant had digitally penetrated her when she was ten or eleven years old. Although K.B. reported that the first time it happened when she was about ten years old, K.B. indicated that appellant had continued to inappropriately touch her on subsequent occasions. K.B. additionally disclosed to her that she had falsely recanted her story after the first incident because her mother did not believe her. Ms. Halbrook testified that over eighty-five percent of children will recant their statements when there is a lack of maternal support and the abuse is by a male caretaker. Ms. Halbrook further testified that of the eighty-five percent of children who recant, about ninety-three percent of them will later reaffirm those allegations. Regarding the video that was taken in Mr. Peek's office, Ms. Halbrook testified that the interview was not conducted under the protocols used by her office. She testified that Mr. Peek used a lot of direct questions, forced multiple-choice answers, legal jargon, and hypothetical questions, all of which she avoids. Ms. Halbrook testified that after her interview, she opined that K.B.'s statement and body language were consistent with sexual abuse. Videos of both interviews were played for the jury. Ky.B. testified that she is K.B.'s older sister. According to Ky.B., when K.B. was ten or eleven years old, K.B. told her about an incident in which appellant had come into K.B.'s room one night and inappropriately touched K.B.'s “girl parts.” Ky.B. testified that her sister was “hysterically crying, like bawling her eyes out” when she told her about the incident.

D.H., K.B.'s friend, testified that in January or February 2016, she attended an overnight church retreat with K.B. That night, K.B. told D.H., along with several other girls in attendance, that appellant had inappropriately touched her when she was approximately ten years old. D.H. described K.B. as emotionally weak, hanging her head, and crying some while making the statement.

K.B. testified and described in detail two incidents in which appellant inappropriately touched her. K.B. testified that on at least one occasion, appellant digitally penetrated her vagina. K.B. admitted that she recanted her story after telling her mother about one of the incidents and that she had lied during the video that was recorded in Mr. Peek's office. She explained that her mother did not believe her story at that time and that she felt the counselor also did not believe her. In 2016, after Ms. Green and appellant had divorced in 2015, K.B. attended a church retreat. K.B. testified that she told her friends at the event that appellant had, in fact, inappropriately touched her despite her prior statements to the contrary. Afterward, she told Ms. Green and her biological father that she had not made up the story about the incidents.

Appellant testified and denied the allegations. Appellant indicated that when K.B. made the initial allegations, she was angry with her mother and wanted to live with her biological father. He did not know why she realleged the allegations. Appellant further denied that he had ever threatened suicide to Ms. Green.

Mr. Peek testified that he had interviewed K.B. after appellant and Ms. Green hired him. At that time, K.B. had initially accused appellant of inappropriately touching her and then recanted her story. Mr. Peek explained that it was not his duty to find out the truth but to protect his client who paid him. Mr. Peek testified that he does not necessarily model his interview on CAC's protocols. However, he does try to avoid leading questions on all material parts and felt that he did so during K.B.'s interview.

Appellant finally offered two character witnesses on his behalf. Appellant's grandmother testified that appellant had never

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